The unlawfulness of the reason for dismissal, even in part, due to the employee’s exercise of his or her freedom of expression, in itself renders the dismissal null and void

Cass. soc., 29 June 2022, n°20-16.060

As a reminder, according to the constant jurisprudence of the Court of Cassation, unless abused, the employee enjoys his freedom of expression inside and outside the company, to which only restrictions justified by the nature of the task to be carried out and proportionate to the aim pursued may be applied. Cass. soc., 14 Dec. 1999, n° 97-41.995;Cass. soc., 22 June 2004, n° 02-42.44;Cass. soc., 29 Nov. 2006, n° 04-48.012;Cass. soc., 28 Apr. 2011, n° 10-30.107)

In particular, abusive, excessive or defamatory comments are considered as an abuse by the employee of his freedom of expression. (Cass. soc., 28 Apr. 1994, n° 92-43.917;Cass. soc., 29 Feb. 2012, n° 10-15.043)

In the absence of abuse by the employee of his freedom of expression, the latter’s dismissal is requalified as a null dismissal since freedom of expression constitutes a fundamental freedom in accordance with the provisions of Article L 1235-1 of the Labour Code.

Nevertheless, one may wonder whether, in the event of litigation, the judges examine the other grievances invoked by the employer to verify the existence or not of a real and serious reason for the dismissal or whether, on the contrary, they consider that the unlawfulness of one of the reasons for the dismissal alone entails the nullity of the dismissal, without it being necessary to examine the rest.

In a decision dated 29 June 2022, the Court of Cassation clarified this point by considering that a dismissal pronounced, even in part, because of the employee’s exercise of his freedom of expression, which was not abusive, would in itself render the dismissal null and void. (Cass. soc., 29 June 2022, n°20-16.060)

In this case, an employee was hired as an assistant engineer to the technical director of the company Sucrière agricole de Maizy, which became Tereos Syral, before being transferred to a subsidiary of the group and then promoted to the position of General Manager of a Romanian subsidiary of the same group.

On 2 December 2016, the employee then alerted his hierarchy to major security and corruption problems attributable to the previous management in the Romanian subsidiary, without any response.

In a letter dated 23 December 2016, the employee denounced not only the disastrous economic and financial management of the Romanian subsidiary but also numerous serious and repeated breaches of labour law. He also emphasised the lack of reaction from his superiors, whom he had alerted beforehand, thus implicating them.

On 20 January 2017, the employer dismissed the employee for serious misconduct on three grounds, one of which was that the employee had abused his freedom of expression on the grounds that the comments he had made were, in his opinion, excessive.

• Does criticism of the economic management of a company and the reporting of serious breaches of labour law constitute abuse?

The employee brought an action before the industrial tribunal against his former employer requesting that his dismissal be reclassified as invalid and that the latter be ordered to pay various amounts.

In a judgment of 7 May 2020, the Amiens Court of Appeal overturned the judgment handed down on 5 January 2018 by the Labour Court insofar as it considered that the dismissal had a real and serious cause, and reclassified the employee’s dismissal as null and void due to the violation of the freedom of expression.

In these circumstances, the employer appealed, considering that the Court of Appeal had deprived its decision of a legal basis, since it had not examined the other complaints denounced in the letter of dismissal.

The latter recalled in particular that, in addition to an abuse by the employee of his freedom of expression, he was also accused of not having drawn up a detailed report on the dysfunctions observed in terms of security and corruption, of not having taken any measures to remedy them, even though this was part of his function as Director, and that, on the contrary, he had even tried to get rid of the problem by suggesting that his deputy be given a delegation of authority in matters of security.

The employer also pointed out that he had been blackmailed by the employee, who had asked him to be dismissed and that, failing that, he would communicate information internally and externally on the situation of the subsidiary in Romania.

> What happens to the other grounds for dismissal if one of them is unlawful?

In a judgment of 29 June 2022, the Court of Cassation rejected the employer’s appeal, considering that :

• the comments made by the employee on the disastrous management of the subsidiary were neither insulting, nor excessive, nor defamatory towards the employer or the hierarchical superior, so that they could not constitute an abusive exercise of his freedom of expression.
• Therefore, it was not necessary to examine the other complaints raised in the letter of dismissal.

Thus, the High Court ruled that the unlawful nature of the reason for the dismissal, even in part, due to the employee’s exercise of freedom of expression, alone renders the dismissal void.

> A first application of the contaminating effect principle to freedom of expression

In other words, in this judgment, the Court of Cassation applies the principle of the contaminating motive, whereby the unlawfulness of a single motive renders the dismissal null and void, since this motive contaminates the other complaints.

However, the Court had considered in other decisions that the judge must in principle examine all the reasons given in the letter of dismissal, which sets the limits of the dispute, and that the dismissal may be deemed legitimate, even if one of them is deemed not real and serious. (Cass. soc.,5 July 2000, n°98-43521; Cass. soc., 23 September 2003, n° 01-41.478; Cass. soc.,12 Jan. 2005, n°02-47323;; Cass. soc., 7 March 2006, n° 04-42.472)

However, these two judgments did not concern a fundamental freedom, so that it could not be concluded de facto that the principles identified would be applicable to a dismissal that might be invalid.

Thus, in its judgment of 29 June 2022, the Court of Cassation provides significant clarification by applying for the first time the principle of the contaminating motive to the violation of freedom of expression.

However, this decision is hardly surprising in view of the case law of the Court of Cassation on other violations of fundamental rights or freedoms.

Indeed, whether in matters of moral harassment, discrimination due to trade union activity or in the event of violation of the employee’s right to take legal action, the Court of Cassation had already had occasion to rule that a grievance constituting an infringement of a fundamental freedom alone led to the nullity of the dismissal, without there being any need to examine the other grievances invoked by the employer in order to ascertain the existence of a real and serious cause for dismissal. (Cass. soc., 10 March 2009, n° 07-44.092; Cass. soc., 31 March 2010, n° 07-44.675; Cass. soc., 2 June 2010, n° 08-40.628; Cass. soc., 3 February 2016, n° 14-18.60)

> What about common sense?

As is often the case, we question the wisdom of such decisions.

Is it legitimate that the violation of a so-called “fundamental” right, in this case freedom of expression, can extinguish a whole set of unrelated grievances?

We do not think so, for two reasons.

150,000 from the company’s coffers should be reinstated (effect of nullity if he or she so requests) and/or obtain compensation that may prove to be substantial on the sole pretext that only one of the grievances concerned a fundamental freedom that was violated.

Nonsense. This means rewarding the company’s fundamental error with outrageous compensation and an even more outrageous return to work.

The second is related to the right of expression. How can a company seriously judge in advance which right of expression is abusive and which is not? Is there a model? Of course not, it is necessarily a case-by-case assessment.

So what is the conclusion, clearer than water, but with effects as dark as mud? Quite simply, it is absolutely impossible for a company to dismiss on the grounds of freedom of expression without running the serious risk of being declared null and void.

This is a good way of removing a reason for dismissal that may be real, as we can only advise any company to exclude it from its list of grievances.

On the one hand, however, common sense would dictate that the principle of contamination, which is the result of intellectualism disconnected from the life of the company, should be rejected. On the other hand, and at most, to increase the compensation if a fundamental freedom is violated, while keeping not the nullity but the basis of the simple without real and serious cause. Finally, it does not seem possible to us in any case to put health and the right of expression on the same level, but we agree that this is our own interpretation.